Pelton v. Schmidt

• Decision Date: 19 March 1895
• Citation: 104 Mich. 345,62 N.W. 552
• Court: Michigan Supreme Court
• Parties: PELTON v. SCHMIDT ET AL.

62 N.W. 552

104 Mich. 345

PELTON v. SCHMIDT ET AL.

Supreme Court of Michigan

March 19, 1895

Error to circuit court, Kent county; William E. Grove, Judge.

Action by James H. Pelton against Charles Schmidt and others to recover for personal injuries. From a judgment for plaintiff defendants bring error. Reversed.

For former opinion, see 56 N.W. 689.

Henry J. Felker (Albert Crane, of counsel), for appellants.

McGarry McKnight & Judkins, for appellee.

HOOKER J.

A statement of the principal facts in this case will be found in the opinion filed upon a former review of the case reported in 97 Mich. 231, 56 N.W. 689. Upon a second trial the plaintiff testified that he had been in the habit of going through defendants' store from the back door to the desk, or other places in the store, to get his book receipted, after delivery of goods at the rear of the store where he had been directed to leave them at all times. One or more other truckmen gave similar testimony. His counsel now claim that this evidence brings the case within the rule stated in the former opinion. Upon the first trial there was no evidence tending to show any express or implied invitation to enter the store from the rear. The plaintiff testified that he had never been in the store from that way before the occasion of his injury, and it appeared from other testimony that it was the intention of the defendants to have the goods inspected and receipted for at the back door, when delivered. Defendants' counsel contend that the plaintiff is concluded by his former testimony, and that he should not be allowed to recover by reason of evidence flatly contradictory of his former testimony. Decisions of this court in cases brought here by writ of error are conclusive upon the parties, so far as the law is concerned, whenever the same state of facts is presented; but upon different facts other principles may apply. If parties change their testimony, the jury may properly consider the fact; but it is not for this court to say that a party must stand or fall by his former testimony, where there is any legitimate opportunity for a change in the testimony. It may, perhaps, be said that there was no such opportunity here, but by ordering a new trial this court relegated the subject to the jury. The important question is whether the trial court should have held that the evidence conclusively showed that the plaintiff was a trespasser, or at most a mere licensee. The record shows that the plaintiff was a truckman for a wholesale house in the city, who delivered goods to the defendants at their store for his employer. He was required (presumably by his employer) to obtain defendants' receipts for the goods delivered. He had been instructed by the defendants not to deliver at the front door, but to go to a back door, which he reached through an alley. He says that it was his custom to go through to the clerk to get receipts, entering at the back door. Other truckmen did the same. This evidence was contradicted, but it was for the jury to pass upon, if it was sufficient to make the defendants liable if found true. It cannot be said that this is a case where the plaintiff visited the store solely for his own accommodation, and crossed, for his own purposes, a portion of the premises kept by the plaintiff for their sole private use, without encouragement or permission. The evidence tends to show that both understood that he was not to deliver goods at the front door, and that it was a part of his business to get a receipt for the goods. If it be said that he should have had his goods inspected, and have received his receipt at the door, it may be answered that the defendants, and not the plaintiff, were interested in the inspection. Doubtless he was satisfied when he obtained the receipt. If, through confidence in the truckmen, or for other reasons, the defendants relaxed their vigilance, and were content to receipt for the goods upon presentation of the book, without inspecting the goods, and without protest allowed the practice to grow up of receipting in the store, knowing that the truckmen entered and retired by the back door, there is some room for an inference of consent. There is no force in the contention that the plaintiff should have gone around by the front door for the reasons-First, that defendants do not say that it was expected, but, on the contrary, that it was not expected, for they desired to receipt at the back door; second, it would have been a roundabout and unnatural way to go, in the absence of instructions to do so, and there is no pretense that such were given. If the defendants permitted this practice to grow up without protest, so that it became the usual course of dealing, the plaintiff was justified in supposing that it was expected that he would enter from the rear door. It was therefore proper to leave the question of invitation to the jury.

The defendants might lawfully keep and use the trap door in their store, subject to their duty to properly guard the same to avoid injury to those persons who should lawfully come into that portion of the store where it was located. This was a duty owing to all persons lawfully there under an express or implied invitation from the owner, upon...